Major overhaul to disclosure coming: are you ready?

23 November 2018

Yesterday our commercial dispute resolution specialists Mark Lim and Paula Barry hosted a discussion about fundamental changes to the disclosure process that are due to come into force on 1 January 2019 as part of a two-year pilot scheme that will run in the Business & Property Courts across England and Wales.

The changes represent the biggest reforms to disclosure since the introduction of the Civil Procedure Rules almost 20 years ago, both in terms of the process itself and the duties arising for both litigants and lawyers.

Basis for reform

Mark and Paula were joined by Lesley Anderson QC of Hardwicke. Lesley was a member of the disclosure working group which spearheaded the reforms. Lesley started the event by talking about her experience on the working group, and how the new rules came about.

Lesley ran through a number of perceived problems with the current system, namely the disproportionate expense that disclosure can entail, inadequate engagement and cooperation on behalf of the parties, and an archaic paper-based regime. Current rules date from a time when electronic documents were not the norm. Although the rules have been amended repeatedly, a fresh approach designed for the 21st century was needed.

Although the pilot is confined to the Business & Property Courts (the Chancery Division, the Commercial Court and the Technology and Construction Court), Lesley emphasised that we should expect the rest of the court system to follow suit, so it will be impossible to avoid the new regime, whatever form it ultimately takes. However, it was stressed that the pilot will be monitored and feedback is important to help shape the rules once the pilot concludes.

Duties on litigants and their lawyers

We then heard from Paula, who took us through the duties introduced for both litigants and lawyers. These arise at a very early stage – as soon as there is any indication that litigation will be commenced, you must be considering your disclosure duties. While these rules sound familiar, Paula explained that they have now been codified in one place, and with that codification will come sanctions for failure to comply.

The duties for both parties and their legal representatives include preserving documents – but to do that you need to understand the definition of “document”. It is defined under the new rules as “any record of any description containing information”. That definition is very broad and includes emails, texts, WhatsApp messages, social media, audio/visual recordings and more. It also includes metadata – that is, data about the document itself such as when it was created and by whom. While the word “document” can encompass a wide range of things, Paula stressed that the rules require parties not to swamp their opponent with vast quantities of irrelevant material.

Paula also suggested some practical ideas to assist with document preservation, such as nominating a person to take responsibility for it, to notify anyone who may hold relevant documents of their duties and to consider appointing e-disclosure specialists.

How will disclosure under the pilot work?

Paula explained the “Initial Disclosure” stage, which arises at a very early point in the litigation process, at the point a party files and serves its Particulars of Claim or Defence. It is intended to be a light-touch first step to include the key documents a party has relied upon in preparing its statement of case, and the key documents required to enable the other party to understand the case they have to meet.

Mark then moved the discussion to cover Extended Disclosure. This is the second phase which may be ordered where appropriate to resolve particular issues in the dispute. Five different Models will be used. These range in terms of how onerous a search (if any) a party must carry out. Whilst the new regime might seem daunting or complex in this regard, Mark highlighted that the objective is to limit the searches required and the volume of documents to be disclosed. The idea is not to increase cost through complexity. That basic premise informs the court’s approach when deciding whether to order Extended Disclosure (and if so which particular Model(s)).

Mark also addressed the new Disclosure Review Document. This is a jointly prepared form which acts as a case management tool. It will promote cooperation and engagement between the parties since the content requires litigants to agree how disclosure will be managed. Its content needs to be considered early in the life of a case. Data-mapping will become increasingly important, with the need to consider basic questions like who has the documents, where and how they are they stored – physically or electronically.

Finally Mark brought the session to a close with comments on the concept of “adverse documents”, which must always be disclosed when they are “known” to a party. The rules on adverse documents are in line with the “cards on the table” approach of the English courts. But the new system may give rise to a number of tactical questions about when it might be best to disclose such documents, and whether there may be a danger in conducting searches, especially if these might throw up adverse documents a party did not previously know existed.

How will the future look?

It remains to be seen whether the reforms under the disclosure pilot will actually address the perceived issues around costs and the sheer scale and complexity of undertaking disclosure in England and Wales. But it is important to remember that the pilot is just that – a pilot – and there is still scope for users to shape the outcome.

More detail on the disclosure pilot scheme can be found in our guide here.